*This is a slightly edited version of a post I posted here yesterday afternoon and have removed. There’s also an addendum about an op-ed piece by Martin O’Malley in today’s Washington Post.

—-

Okay, so all you politics obsessives probably heard about a comment Martin O’Malley made to NPR’s Morning Edition host Steve Innskeep during an interview earlier this week, in response to a question about Marco Rubio’s claims about “active government.” Here’s the exchange:

Inskeep: “[Rubio] argues that an active government actually keeps people frozen at their economic status because if you are well off, if you can afford a lawyer, if you can deal with regulations, you can maneuver through government and stay prosperous. And if you are not so well off, it’s harder to work the system. Is there some truth to that? You were a big city mayor; you know how government works.”

O’Malley: “No, I don’t think there’s any truth to that. It is not true that regulation holds poor people down or regulation keeps the middle class from advancing. That’s kind of patently bulls—.”

Well, at least we know that O’Malley knows how to get news media attention, so big points for that. And we also know that he’s ready, willing and able to respond appropriately and effectively to the incessant, generic big-gummint-is-the-problem trance-inducing mantra. Even bigger points for that.

But while Innskeep wasn’t actually quoting Rubio and was instead paraphrasing, the exchange highlighted a notable, but not widely noticed, hallmark of Rubio as politician: He routinely says things that are incoherent or that are flatly false as a matter of underlying fact.

Such as that Iran, a Shiite society, and ISIS, a Sunni terrorist group, are in cahoots and Obama doesn’t want to stop Iran from developing a nuclear military capability because Obama doesn’t really want ISIS defeated. (Something like that; I can’t remember the specifics from earlier this year, but that was the gist of it.)

And such as his federal-budget proposal that will cut, but (unlike the other presidential-nomination contestants’ proposals) won’t completely gut, programs that assist low-income families and individuals; that will significantly increase defense spending; that will eliminate the estate tax; that will lower capital gains and corporate taxes; that will impose no new or higher tax rates at all; and that will balance the budget in 10 years. (President Houdini!)

And such as that an active government keeps people frozen at their economic status because if you are well off, if you can afford a lawyer, if you can deal with regulations, you can maneuver through government and stay prosperous. And if you are not so well off, it’s harder to work the system.

Yep. It’s the EPA, the SEC, and the National Labor Relations Act that are keeping all those minimum-wage workers and their families from moving up the socioeconomic ladder! Rubio, a son of blue-collar employees, succeeded despite having been forced by the federal government to go to public rather than private universities and to pay his tuition using the student loans he applied for at gunpoint. So it can be done, even in the face of active government. It’s just much harder. And more dangerous.

One thing I remember fondly about the nervous reactions of some conservative pundits during the fall 2008 campaign season when it became clear that Sarah Palin was not a wise choice as McCain’s running mate was a comment by a dismayed Peggy Noonan, a longtime Republican pundit who was George H.W. Bush’s chief speechwriter. Noonan wrote about Palin (I believe these were her exact words): “She just … says things.” (Ellipses Noonan’s.)

Rubio, too, just … says things. He sort of … babbles. He seems to have no filter—for coherence, for accuracy, for plausibility—through which he passes his thoughts before expressing them.

Yup. Be sure to click that “for coherence” link. The auto-industry bailout kept those auto-industry workers and their families from advancing because they couldn’t hire lawyers to help them navigate their continued employment in their auto-industry jobs. Got it.

When I read about O’Malley’s response to Innskeep a couple days ago, and therefore also read Innskeep’s question to O’Malley, I wondered what, specifically (assuming that Innskeep’s paraphrase or summary of Rubio’s statements were accurate reflections of those statements), Rubio was referring to. What in heaven’s name is he talking about? What federal statutes and regulations are keeping people who can’t afford fancy lawyers—or any lawyer at all—frozen at their economic status because they can’t maneuver through federal government regulations?

Well, I now have my answer, albeit not from Rubio. By chance, I happened upon a three-day-old commentary this morning in the Los Angeles by winger columnist Jonah Goldberg, written in reaction to O’Malley’s comments to Innskeep, in which Goldberg purports to speak for Rubio. The column is titled “Martin O’Malley’s modern-day know-nothingness,” and its first several paragraphs recite the history of President Millard Fillmore’s party, the Know-Nothings.” (Goldberg doesn’t mention Fillmore, but I happen to know that his party was the Know-Nothing Party.) He throws in some stuff about the history of the original federal minimum-wage law, which he thinks kept people frozen at their economic status because they couldn’t afford lawyers to help them navigate the intricacies of that statute. (Something like that.)

But then he gets down to brass tacks. The tacks being that O’Malley is too ignorant to know that some professional and trade licensure education requirements unjustly and unjustifiably keep lower-income people from entering those professions and trades and that even the application forms are obnoxiously long, complex and burdensome. And that O’Malley is blind to the fact that small banks, which are the traditional lenders to small local businesses, are disappearing en masse, and that this is because of … huge Dodd-Frank compliance costs.

Well, at least the second of the two—the banking one—involves federal laws. Of course, the real reason that small banks no longer are competitive with, say, JP Morgan Chase, Citibank, Bank of America and Wells Fargo is the deregulation of the finance industry, mainly the repeal in the 1990s of the Glass-Steagall Act of 1934 that prohibited commercial, federally insured banks from engaging in investment banking and other securities trading—including in derivatives. Goldberg and Rubio may not have noticed, but the en masse demise of so much of the community banking industry began back then and continued as a result of the financial collapse of 2008-10.* Y’know, the financial collapse precipitated by financial-industry deregulation and, regarding derivatives, no-regulation. The financial collapse that caused the economy and, consequently, many, many, many small businesses to collapse.

Yeah, that one. Some people who lost their jobs and therefore no longer could pay their non–subprime mortgages (including to community banks), and many small-business owners whose businesses failed because of the crash of the economy no longer could repay their business loans. To community banks.

As for the first of Goldberg’s two big-gummint complaints—that some professional and trade licensure education requirements unjustly and unjustifiably keep lower-income people from entering those professions and trades and that even the application forms are obnoxiously long, complex and burdensome—he’s spot-on that it’s an outrage. He just needs to explain why, since these are state and local licensure requirements and applications, and are unrelated in any respect to federal regulation—and Rubio’s running for president, not state or local office—he thinks it’s O’Malley rather than, say, he who is a Know-Nothing. Here’s betting that O’Malley, unlike Goldberg, does know that professional and trade licensure education requirements and applications are determined and administered not by the federal government but by state and local ones.

And here’s also betting that O’Malley knows that since the very purpose of these inappropriate bars to jump over and hoops to jump through is to keep competition in these professions to a minimum. And that he knows that the obvious agitators for these mandated regulatory hoops are the beneficiaries of minimal competition—i.e., those already in these professions or trades or in ones that compete with the unduly restricted ones—and that Democratic officeholders are no more likely that Republican ones to push for these laws and regulations. He might have suggested to Goldberg that, before Goldberg demonstrated his ignorance, he check out who’s giving campaign contributions to whom.

But it’s Rubio, not Goldberg, who’s running for president. So the next time that Rubio argues that an active government actually keeps people frozen at their economic status because if you are well off, if you can afford a lawyer, if you can deal with regulations, you can maneuver through government and stay prosperous–and if you are not so well off, it’s harder to work the system—he’s asked for, say, specifics. As in: What in heaven’s name is he talking about? Maybe he’ll just refer the questioner to Sarah Palin for details. Or to Mitt Romney.

—-

NOTE: O’Malley has a terrific op-ed piece in today’s Washington Post about the student-loan issue, in which he discusses the broader effects of the current situation on the economy and on American society and advocates for the solutions that Elizabeth Warren has been proposing. He also details his own actions as Maryland government regarding that state’s public university and community college costs.

Scott Lemieux weighs in at The Week, writing that, although “Supreme Court voting is too complex to be explained by any single factor,” the “attitudinal model” – which posits that “Supreme Court votes are explained by what judges consider desirable policy” – “still contains a good deal of truth.”

Lemieux’s article is a must-read–for his own excellent commentary and because it mentions recent articles and empirical studies that not only make the substantive point but also illustrate that we’ve reached, or are about to reach, the point at which, having broken through to the larger, general news media, it becomes a subject of discussion among, y’know, ordinary folk. The sort of people whose cert. petition, should they file one, the Court wouldn’t be caught dead actually considering granting.

Lemieux’s statement that “Supreme Court votes are explained by what judges consider desirable policy” is profoundly accurate. During the 1980s and ‘90s the justices were quite open about this, at least regarding access-to-federal-court issues. By which I mean that they engaged in wholesale fabrications of jurisdictional, quasi-jurisdictional, and “immunity” doctrines, and the rewriting of procedural statutes (the Federal Rules of Civil Procedure are statutes)–in an unremitting juggernaut to deny federal-court access to pretty much everyone who isn’t a corporation, a state (states are now people, just like corporations, except when someone wants to sue them), a public official or employee acting in the course of his or her employment, or a rightwing culture warrior.

The Roberts Court has continued this, in spades, except when a mega-corporation or a multi-millionaire represented by a $1,000/hr. Washington-based Supreme Court Specialist asks that they narrow the doctrine. There was a very, very recent (May 5), stunning exception to this hard-and-fast qualifications-to-have-your-cert.-petition-considered prerequisite list, in an opinion that I would consider the second-most-significant opinion of this term (McCutcheon v. FEC is the most important, in my opinion), except that I already know that the lower courts will ignore the opinion–simply pretend that it doesn’t exist–and get away with it. The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it–a highly unlikely event.

If you doubt that, please read the dissent from the decision to hear that case.* It will be educational, I trust.

The Roberts Court’s contribution to the Court’s wholesale self-conferred policymaking role is to purport to justify their policymaking as mandated by the Constitution–by its structure, its history, its … whatever. Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.

That the actual structure of the Constitution, as well as its explicit provisions, include, for example, a clear separation-of-powers bar to judicial-branch fabrication of jurisdictional and other procedural bars to access to federal court has, since the early 1980s mattered not one whit. So the Court no longer adds to the a veritable avalanche of fiats that the justices themselves justified in some instances as simply their idea of good policy. The fiats these days come clothed as alleged personal dictates of Madison or of Congress, notwithstanding the chasm between Madison’s (and other framers’) actual expressed beliefs–or Congress’s actual clear intent, as per the statute’s or procedural Rule’s words as those words are commonly understood (or were, at the time of enactment)–and the Court’s suspiciously rightwing interpretation of them. And now, finally, the general news media and the larger public are catching on.

Progress.

Another terrific article about this is an op-ed by journalist Michael McGough in Thursday’s Los Angeles Times, in which he says he’s “struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the ‘party bishop.’”

Relatedly, another terrific article in The Week, this one by Matt Bruenig, argues for term-limiting Supreme Court justices, and is subtitled “Lifetime appointments were meant to preserve judicial independence. But the high court has devolved into a political body with too much power.” That article is similar to one by law professor Eric Segall published at CNN.com earlier this week, except that Bruenig’s article details some specific amendment proposals.

These are matters whose time finally may have come as issues worthy of serious attention, with real possibility for change.

NOTE: This is an edited and expanded version of a post I posted yesterday and have now deleted.

—-

CORRECTION: I received the following email this morning from a law clerk to a federal magistrate judge:

Greetings,

I read your article, “Finally . . . a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes” this morning after linking to it from SCOTUSblog. In it, you referenced Tolan v. Cotton from the current Supreme Court term saying, “The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it — a highly unlikely event. If you doubt that, please read the dissent in that case. It will be educational, I trust.”

Upon linking to Tolan v. Cotton, however, I found no dissent, only a concurrence by Justice Alito, joined by Justice Scalia. Did I misread your comment?

I responded:

I am sorry; you are right that the Alito opinion, joined by Scalia, is a concurrence in the judgment. It was a dissent from the decision to grant cert., but a concurrence in the two substantive rulings–one concerning summary-judgment jurisprudence, the other concerning “qualified immunity” federal common law. Once the Court decided, 7-2, to grant the cert. petition, Alito and Scalia did agree that the Court of Appeals had ignored the mandate of Rule 56 and the Court’s own summary-judgment and qualified-immunity jurisprudence. But since petitioner Tolan was neither a state trying to have the Court overturn a federal habeas grant nor a mega-corporation asking the Court to rein in the rampant and breathtaking misuse by the lower federal courts of the Court-fabricated jurisdictional/quasi-jurisdictional “federalism” doctrines, Alito and Scalia objected to the majority’s decision to grant the petition.

The part of my post in which I (briefly) discussed Tolan addressed the issue of who has access to Supreme Court “error review”, and when, and why. So I used the word “dissent,” but should have explained that the opinion was only a dissent to the part of the opinion granting cert. and stating why, and not to the substantive outcome.

I’ll add a correction to my post.

Beverly Mann

Some of this is technical language, and sometime later today or tomorrow I’ll post separately about this, explaining it. But I wanted to post this correction here as soon as possible. The emailer said she serves as the death-penalty law clerk to the magistrate judge she works for. 5/21 at 1:21 p.m.

In an era in which corporations have been trying every possible stratagem to cut employee benefits (see our look at the Obamacare employer mandate earlier today), a new threat to retirement benefits has just arisen.

The source of the threat is the Supreme Court, which earlier this month agreed to rule on when or whether employers can unilaterally end retiree healthcare benefits, even when they’re negotiated as part of a union contract.

The article, which explains the situation and includes the quote in the title of this post, links to Bagley’s post about the Supreme Court case at issue on his Bagley’s blog. The blog is called The Incidental Economist, and is devoted to discussion of healthcare reform.

The case has already been decided, of course, 5-4, at the Court. All that remains are the formalities: the briefing, argument, and the opinion written by Samuel Alito.

The Supreme Court has long been criticized for its unwillingness to televise, or even record, its proceedings. But debate about transparency at the nation’s highest court should extend far beyond the issue of television cameras. Citizens deserve transparency from the court about how it decides which cases to hear, how justices decide whether to recuse themselves from pending cases, and how the justices’ court-related personal papers are treated after they retire.

The Supreme Court receives more than 7,000* requests a year to overturn lower-court decisions and grants only 70 to 80 of those petitions (it takes four votes to hear a case). Deciding which cases to hear is an enormously important aspect of a justice’s job. Yet the Supreme Court does not disclose which justices decide whether a case is worthy of its attention. In fact, there isn’t even an official record of the votes.

Okay, obviously I’ve died and gone to heaven, because in the earthbound world, no one–at least to my knowledge–other than me has written publicly about this. I’ve written repeatedly about it here at AB, most recently here and, earlier, in more depth. But no one else seemed to care. No one who matters, anyway. I would have died of shock this morning when I read that op-ed piece, were it not that I was, unbeknownst to me, already in heaven, even though I’ve never even attended a government meeting in the town of Greece, NY.

Segall is a law professor at Georgia State University. He also is the author of a book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. But y’all already knew that the Supreme Court is not a court and that its justices are not judges, because you religiously read my AB posts about the Court. Even though my posts aren’t part of the government-meeting opening proceedings in the town of Greece, and anyway you, like me, don’t live anywhere near that town.

Segall’s advantage over me is that he was able to ask a retired justice, John Paul Stevens, why the votes on “cert. petitions–you know what cert. petitions are, because you read my AB posts–aren’t public. Segall reports that Stevens, when asked this, “paused and then said that, in his 35 years on the court, the issue of publicly disclosing such votes had “never come up, so he had never thought about the question.”

I began posting at AB in the spring of 2010, right around the time that Stevens announced his plans to retire at the end of that Court term in June of that year. But I’m not sure my writings on AB would qualify as “coming up” anyway.

So, what does? I suggested recently that Congress (by which I meant, liberal members of the Senate Judiciary Committee) should propose legislation to require a formal public record of the votes on every petition for certiorari, and as a prerequisite, require an actual formal vote on every petition for certiorari. (I don’t think this would qualify as a revenue measure, so the bill could originate in the Senate. I could be wrong, though, since it would be a mandate.)

Segall says Stevens’ “response says a lot about how the justices take for granted their secrets and the court’s lack of transparency.” Yeah. I call it an entitlement, and it needs to be fixed. Segall goes on to report:

After reflecting on the question, Stevens noted that the court shouldn’t continue a practice simply because ‘it’s always been done that way,’ but he also worried that if certiorari votes were disclosed, the public would assume that a justice’s vote to hear a case indicated how he or she would rule on the merits of that case.

“Confusion about what the votes mean,” Segall comments, “is not, however, a justification for keeping them secret from the American people.” Oh, I dunno. When an extremely powerful government institution is allowed to make it’s own rules, absolutely unfettered, to suit its members’ personal needs, confusion about what the votes mean sounds like as good a justification as any.

So, apparently, does deliberate obfuscation about which justices vote to give which corporation represented by which Supreme Court Specialist, or (carte blanche) which state attorney general’s office, access to Supreme Court review, and which justices vote to give no one else access. Except the Pacific Legal Foundation’s clients.

I, for one, sure would be interested to know which justices refused, for decades, to hear cases about Court-fabricated “jurisdictional” and “quasi-jurisdictional” bars to access to federal court to assert a violation of a constitutional right–and then voted to address exactly those issues, at the behest of ExxonMobiland Sprint Communications, narrowing the respective Court-fabricated “doctrines” exactly to the extent necessary to allow them and those nearly identically situated access to federal court, but no one else.

It’s not like, once they agreed to hear those corporations’ cases, they didn’t note in their unanimous opinions that these “doctrines” have metastasized outlandishly in the lower federal trial and appellate courts; they did. They said that, in both the ExxonMobil opinion and in the Sprint opinion. It’s just that no major corporation had asked them to address these cancers before. But in both instances, the cancer is not full in remission. Further treatment will have to await a cert. petition by Chevron or Verizon.

Not incidentally, both of these doctrines pretty baldly violate the doctrine of separation of powers, as I said in a recent post. And the First Amendment petition clause. Maybe Chevron’s and Verizon’s Supreme Court Specialist will point that out. Decades from now. Until then, only parties challenging a section of the ACA will have access to federal court as a matter of constitutional right and federal-court-jurisdiction statutes that say they apply to, well, everyone. The justices are protecting are freedom. And they violated ExxonMobil’s and Sprint’s.

Segall says the current intense level of secrecy at the court can’t be justified. He’s right. But what difference does that make? None, best as I can tell.

Another issue that apparently never comes up at the Court is the ridiculously and, for a good many people, prohibitively expensive cert.-petition process. The Court requires an expenditure of roughly $5,000-$7,000, paid to one of two or three private printing companies that have a cartel, for the (very) special printing of an original and 39 copies of each cert. petition, plus three for each opposing party. This to play the lottery for the perhaps three slots annually that are not allocated for petitions filed but government entities or government-employees-as-government-actors; petitions bearing the name of at least one Supreme Court Specialist on its cover; or petitions filed by some culture warrior and represented by a lawyer at one of the four or five probono rightwing Legal Foundation law firms.

Much better to spend that $5,000-$7,000 on state lottery tickets. Or at a casino. Which the Supreme Court most definitely is not.

—-

*Most reports I’ve read in the last several years list the number at approximately 9,000 annually, and one recent report said the number is now up to 10,000. That includes petitions filed with a court-approved fee waiver available only to indigents, and the special printing and 30 of the 40 copies also are waived. But, with the exception of the occasional death penalty case and high-profile-issue Fourth Amendment case, in which big-name counsel is serving pro bono, it is big news when one of these is granted, always during a blue moon/solar eclipse/meteorite shower event.